Contraception Mandate Curbed Again in the 7th

CHICAGO (CN) – For the second time this year, a divided panel of the 7th Circuit enjoined a provision of health care reform that requires employers to cover contraception. Grote Industries is a family-run business, headquartered in Indiana, that manufactures vehicle safety systems. The company’s 1,448 full-time employees are part of a group health insurance plan, which is self-insured, meaning that Grote Industries pays for medical expenses directly. But members of the Grote family, who are Roman Catholic, objected to a provision of the Patient Protection and Affordable Care Act that requires employers to provide free contraception services as part of their health insurance plans. They argued that the mandate violates their rights under the Religious Freedom Restoration Act; the free exercise, establishment and free-speech clauses of the First Amendment; the due process clause of the Fifth Amendment; and the Administrative Procedure Act. “They maintain that the legal duties imposed on them by the contraception mandate conflict with the religious duties required by their faith, and they cannot comply with both,” the 7th Circuit summarized in its order. U.S. District Judge Sarah Evans Barker refused to issue a preliminary injunction on Dec. 27, one day before the 7th Circuit concluded in Korte v. Sebelius that enforcement of the mandate would violate the religious rights of private business owners. Though Judge Barker refused to reconsider the Grotes’ case in light of Korte, a divided three-judge panel of the 7th Circuit reversed last week, releasing the decision in typescript. Judges Joel Flaum, appointed by President Ronald Reagan, and Diane Sykes, a President George W. Bush appointee, made up the majority. Judge Ilana Diamond Rover, also a Bush appointee, dissented. “In all important respects, this case is identical to Korte; our analysis there applies with equal force here,” the unsigned majority opinion states. “If anything, the Grote Family and Grote Industries have a more compelling case for an injunction pending appeal. Unlike the health insurance plan at issue in Korte, the Grote Industries health plan is self insured and has never provided contraception coverage,” the majority determined. “As in Korte, the government has not, at this juncture, made an effort to satisfy strict scrutiny. In particular, it has not demonstrated that requiring religious objectors to provide cost free contraception coverage is the least restrictive means of increasing access to contraception.” In the dissent, Judge Rovner questioned whether how employee health care decisions burdened the Grotes’ Catholic faith. “Holding that a company shareholder’s religious beliefs and practices are implicated by the autonomous health care decisions of company employees, such that the obligation to insure those decisions, when objected to by a shareholder, represents a substantial burden on that shareholder’s religious liberties, strikes me as an unusually expansive understanding of what acts in the commercial sphere meaningfully interfere with an individual’s religious beliefs and practices,” Rovner wrote. The ruling came just days before the Obama administration announced a plan to expand religious exemptions to the contraception mandate. The proposal would expand the number of groups exempt from birth control coverage to include religiously affiliated hospitals, universities and social service agencies. Secular businesses like the Grotes’ would not have benefited by the proposed changes.